A Breach of Promise

A Breach of PromiseAwaiting Final Verdict on IRA Tapes
By Sabina ClarkeIrish Edition
July 16, 2012

As of today July 15th, former IRA member, author and journalist Anthony McIntyre, his American wife Carrie Twomey and New York author and journalist Ed Moloney are in a waiting game—hoping to hear if their request for an “en banc” hearing before all U.S. First Circuit Court judges will be granted. They are appealing the handover of former IRA member Dolours Price’s interview related to the kidnapping and murder of Jean McConville, a mother of eleven who was thought to be an IRA informant. The request was made by the Historical Enquires Team, HET, representing Her Majesty’s Government.

McIntyre and Moloney’s appeal seeks First Amendment privilege accorded researchers and scholars and a Fifth Amendment claim “based on alleged risk to appellants.” Boston College initially fought the subpoena to hand over the Dolours Price archive in court but inexplicably did not appeal the Lower Court’s most recent adverse ruling relying on the caveat of scholar’s privilege.

The original subpoena for both former IRA member Brendan Hughes archive and the Dolours Price archive is suspect on many counts; the first being that the McConville murder, which happened 40 years ago was never investigated when it happened. Second, the Mutual Assistance Legal Treaty. MLAT, upon which the subpoenas are based has never been used in this type of investigation and is usually reserved for crimes like embezzlement and other criminal activities. Third, it is transparent that the request has political overtones. In the opinion of Judge Juan Torruella, the First Circuit Court of Appeals the offences connected to the subpoena were political in nature stemming from the conflict in Northern Ireland. While he rejected McIntyre and Moloney’s plea and stopped short of calling the subpoenas “politically motivated,” he set the stage for Secretary of State Hillary Clinton and Attorney General Eric Holder to dismiss the subpoenas outright.

The Belfast Project, an oral history project, was originally suggested to Boston College by Paul Bew, a visiting professor from Queens University in Belfast for the purpose of better understanding the period in Northern Ireland known as the Troubles spanning the late 1960s to the present.

Once the project was given the green light, Boston College tapped New York journalist and author Ed Moloney to oversee it. Then Moloney reached out to Anthony McIntyre in Ireland who conducted interviews with former IRA members from the republican community while Wilson McArthur, an academic from Queens University in Belfast conducted interviews with former unionists from the loyalist community.

Confidentiality was guaranteed to all participants—until subpoenas were issued to the U.S. Government seeking oral history recordings of both Brendan Hughes, now deceased and Dolours Price who is living. The request made by the Historical Enquiries Team, HET, which is comprised predominantly of former Royal Ulster Constabulary, RUC, officers and former British Security officers, was suspect from the start. The McConville murder had lain dormant for years and was never investigated when it happened. Why now the sudden interest in the McConville case with more than 3,000 unsolved murders in Northern Ireland. The educated guess is that it is all about embarrassing Sinn Fein President Gerry Adams. Despite lacking any credible evidence linking him to the murder other than hearsay from former IRA dissidents, Brendan Hughes, who broke with Adams over the peace process, and Dolours Price, who has been under psychiatric care—the motivation remains clear.

What upsets McIntyre and Moloney as responsible journalists and researchers is that they guaranteed confidentiality to all participants in the Belfast Project. Now, they are concerned for the safety of the interviewees, their personal safety and the safety of their families. Another concern is that this inquiry has the potential to jeopardize the already fragile peace process in Northern Ireland. And, as academicians, they fear that similar projects and future attempts to find the truth may be shut down for good.

Recently, I spoke with Anthony McIntyre and his wife Carrie Twomey in Ireland, and Ed Moloney in New York …the interview with all three (identified by their initials) is below:

SC: How do you feel about Judge Juan Torruella, the U.S. Court of Appeals for the First Circuit calling the subpoenas “politically motivated”; do you feel that it opens the door for Secretary of State Hillary Clinton and Attorney General Eric Holder to dismiss the subpoenas?

AM: But they have given no indication up until now that they are going to do this.

SC: How do you feel about the support you are getting here from the U.S. and the politicians?

AM: I am quite pleased that so many have written on our behalf with the argument that the tapes should not be handed over to the PSNI. I think the support has been good. But we are not satisfied with the Justice Department and we are not satisfied with the State Department. It is a political decision not to block the handover of the tapes.

SC: Where are things right now?

AM: We are requesting an ‘en banc’ hearing before all First Circuit Court judges—meaning the whole First Circuit Court would come in to listen to our pleas. We should hear pretty rapidly from what I hear. We are asking for the case to be reheard so we have the right to intervene. We feel that the First Circuit Court decision based on Branzburg versus Hayes was interpreted too narrowly. Also, we don’t think they have dealt adequately with either our First or Fifth Amendment rights.

SC: Are you feeling uncomfortable with where you are now?

AM: We have felt uncomfortable since this whole thing started. If they hand the tapes over, we will be very uncomfortable.

SC: If you lose this appeal, will your next step be the Supreme Court?

AM: Yes, if we get that far, since they only hear three percent of the cases petitioned. And we are also asking for a judicial review in a Belfast Court to stop the handover of the Price tapes.

SC: What has the government in the North and First Minister Peter Robinson said?

AM: Peter Robinson hasn’t said anything but his party has said quite a bit. They are welcoming the First Circuit Court decision and want very much for the tapes to be handed over.

SC: Has the Irish Government commented?

AM: The Irish Government made a statement the other day. Micheal Martin, head of Fianna Fail asked what the government’s position was on this. He said that he realized that there were competing interests and that the McConville family needed the truth but he also said that if there were some other mechanism to get to the truth, this whole process could be preempted. So, the Irish Government is saying that they are monitoring the situation but that the investigation trumps the researchers’ right to academic privilege.

SC: Do you think the motivation for this investigation is about getting Gerry Adams?

AM: Yes. Even Kevin Cullen, columnist at the Boston Globe said it is about getting Gerry Adams.

SC: Didn’t Norman Baxter, the former RUC officer now training the Afghan Police Force for a private security firm with a contract from the Pentagon, call the Police Service of Northern Ireland, PSNI, and urge them to reopen the McConville case?

AM: Yes, we think there is an association there. He has been pushing civil cases against people and he is backing the McConville call for a civil case against Gerry Adams.

SC: So, this is a waiting game?

AM: It is fraught with tension. We are trying to exhaust the legal process and get as much out of this as we possibly can. We are trying to get the most favorable verdict. We haven’t exhausted all our legal strategies yet.

SC: What do you think of Boston College?

AM: Boston College has failed lamentably. They simply did not do their work at the start of this; otherwise we would not be in the position we are in. They could have put on a much stronger face. The intervention of the American Civil Liberties Union, ACLU, embarrassed Boston College into appealing the judgment on the second subpoena. Initially, they were prepared to hand everything over quietly from the start. They were going to try to conceal it from us and just hand the tapes over and not tell us. Ed Moloney found this out only by accident. He then went to the New York Times and outted them.

SC: What do you want to happen right now?

CT: I want to see the subpoenas dismissed. The opening is there for this to happen. Also, it is an election year for President Obama. He should move on this because all the goodwill and hard work of Irish Americans needs to be recognized. This investigation is very plainly one-sided even with the investigation into Bloody Sunday and possible prosecution with the specter of continual inquiries that could be ongoing when all this is supposed to be laid to rest. In the absence of any kind of truth and reconciliation commission that is set up to deal with this, there is no way to get beyond the past.

SC: What more can Irish America do?

CT: Contact your Irish American organizations and contact your congressmen, this has to stop not just for my family but for the impact this will have on the peace process. This will shut down all oral history projects. Nobody is going to talk.

SC: How did you first find out about the Boston College subpoenas and what did you do?

EM: I was told by a contact at Boston College who asked for anonymity that the subpoenas had been served but that we, that is I and those involved in the project, were not being told what happened. I immediately phoned the Boston College legal counsel to confirm and also to ask if Boston College was going to fight the subpoenas. Each time I called, Nora Field, the counsel, either was not there or could not come to the phone. I then phoned the college librarian Bob O’Neill and told him I knew about the subpoenas but that I couldn’t get through to Field. He offered to contact her for me. When I didn’t hear back, I phoned him again and he told me that Field did not want to speak to me. I was shocked and suspected the reason she did not want to speak to me was because Boston College was not going to resist the subpoenas. So, in order to force their hand, I contacted the New York Times. Only after the story appeared there, did Boston College hire a lawyer. Otherwise, I do wonder if they ever would have fought the subpoenas although my suspicions were strengthened when Boston College refused to lodge an appeal when the First District Court ruled against us.

SC: Since your recent appeal was denied, where are you now and did the judge call the requests for the interviews politically motivated?

EM: We are applying for an “en banc” hearing in front of the entire bench of the First Circuit Court of appeal. If that is refused or fails, we have other legal options to consider. The judge did not call the requests political but he did say that the offences connected to the subpoenas were political in that they derived from the conflict in Northern Ireland over the existence of partition. I believe this may be the first time a Federal Court judge has said the Troubles in Northern Ireland were political. The significance of his view is that the U.S. government is allowed to reject the British subpoenas if the offences are deemed to be political. The statement by Judge Juan Torruella gives Attorney General Eric Holder and Secretary of State Hillary Clinton a reason to reject the subpoenas. Whether or not they do is really up to pressure from Irish America.

SC: Is your book Voices From The Grave based on interviews conducted during the oral history project at Boston College?

EM: Yes.

SC: Why is the Historical Enquiries Team, HET, requesting the Dolours Price interview 40 years later after a murder that was not investigated when it happened?

EM: That I cannot answer although I do suspect that there is a political motive behind this, an element of revenge from elements of the old Royal Ulster Constabulary, RUC, inside the Police Service of Northern Ireland, PSNI, who see this as an opportunity to embarrass senior figures in the Provisional Irish Republican Army, the Provos, like Gerry Adams who they blame for changes in policing caused by the Peace Process such as change of name from the RUC to the PSNI; more Catholics as members of the force; and the scrapping of the old RUC Special Branch. The Historical Enquiries Team, HET, has been criticized widely for having a double standard—treating killings carried out by police and British Army much more leniently than killings carried out by paramilitaries. There is also something very wrong with the police having a role in deciding who did what to whom in the Troubles. If the Irish Republican Army, IRA or the Ulster Volunteer Force, UVF, were given the same role as the Historical Enquiries Team, HET, there would be an outcry, and quite rightly. The HET because it is rooted in the police and has many former RUC Special Branch members working for it, cannot possibly be neutral. The past should be adjudicated by an outside body.

SC: If the Dolours Price interview is turned over, what will the fallout be for you and Anthony McIntyre?

EM: My researcher and the people he interviewed will be in very great danger of violent retribution from the IRA for talking about IRA matters to outsiders.

SC: Aside from dooming future oral history projects in academia and possibly jeopardizing the peace process in Northern Ireland, what do you think could happen to Gerry Adams if the tapes are handed over?

EM: At the very least, he could face a civil trial instigated by the McConville family.

SC: What do you think of the Irish government’s stand on this issue so far?

EM: Disappointing. They could do much more.

SC: Do you have any fear for your personal safety?

EM: My life would be in danger only if I cooperated with the authorities in any prosecution but that I will not do.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

Follow BCSN

Subscribe to BCSN

Enter your email address to follow this blog and receive notifications of new posts by email.